Kong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 111 (22 February 2002)

Last Updated: 25 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/354

GENERAL ADMINISTRATIVE DIVISION )

Re Sarith Kong

Applicant

And Minister for Immigration, Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal R P Handley, Deputy President

Date 22 February 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Spouse Visa - sponsor - character test - past and present general conduct - Visa Applicant and sponsor born in Cambodia - where Visa Applicant made false and misleading claims in application for visa in relation to the lineage of her two children -- exercise of the discretion - Expectations of the Australian Community - Protection of the Australian Community

Migration Act 1958: ss 499(1), 499(2A), 501(1), 501(6)(c)(ii)

Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001

Ministerial Direction No. 21 - Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) AAR 148

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

22 February 2002 R P Handley, Deputy President

1. This is an application by Sarith Kong ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 14 February 2001 to refuse a Subclass 309 Provisional Spouse Visa to the Applicant's spouse, Sarin Prak ("the Visa Applicant"). At the hearing, the Applicant was represented by Duc Hung Bui, an Authorised Migration Agent, and the Respondent was represented by Leonard Leerdam, Solicitor, of Sparke Helmore Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Sina Khuth, and in person by the Applicant, Sokhom Khuth, Laura Khuth and Lon Khuth.

BACKGROUND

2. The Applicant, Mr Kong, was born in Cambodia on 14 October 1957 and is aged 43. He arrived in Australia on 27 June 1983 with his then wife, Rath Ray and their 3 children as refugees, having lived in a refugee camp in Thailand since 1979. Mr Kong and Miss Ray had 2 more children in Australia before separating in 1987 and being divorced on 23 January 1994.

3. The Visa Applicant, Ms Prak, was born in Cambodia on 1 February 1961 and is aged 40. Ms Prak was formally married to Run Chap by whom she had one son, Sarith Chap, who was born on 1 January 1981. Run Chap died in 1982. Ms Prak also claims to have an adopted child, Sareth Chap, who was born on 1 February 1980. Ms Prak claims to have adopted Sareth after his parents died.

4. Mr Kong shares a house with Mr Sokhom Khuth in Rosemeadow. Mr Khuth migrated to Australia in 1987. He had lived previously in the village in Cambodia where Ms Prak lives and, in 1991, told Mr Kong about her and showed him a photograph of her. In 1992, Mr Kong contacted Ms Prak by telephone and over the course of the next 3 years they communicated by phone and letter prior to Mr Kong travelling to Cambodia in 1995 and their getting married on 10 April 1995.

5. On 28 April 1995, Ms Prak applied to migrate to Australia sponsored by her husband, Mr Kong and nominating 2 dependent children under the age of 18, Sareth Chap and Sarith Chap. Ms Chap claimed that her two sons were the children of her previous marriage to Run Chap.

6. The information relating to Sareth Chap conflicted with information in departmental records relating to an application for a special assistance visa made by Mr Sakhan (also referred to as Sokhon) Chap lodged on 20 July 1994. One of 5 children included in this application was Sarith Chap, born on 1 January 1981. The photograph submitted with the visa application was identical to the photograph submitted by Ms Prak for Sareth Chap with her 1995 visa application. After an investigation by departmental officers in Cambodia, Ms Prak was interviewed at the Australian Embassy in Phnom Penh on 7 April 1997. Ms Prak admitted in the course of the interview that Sareth Chap was not her natural child and had been included in the application because he is an orphan. On 9 October 1997, Ms Prak's application for a visa was refused on the ground that she had provided false information.

7. On 7 April 1998, Ms Prak lodged an application for a Subclass 309 Provisional Spouse Visa in which she included two dependent children, an adopted child, Sareth Chap, born on 1 February 1980 and a natural child, Sarith Chap, born on 1 January 1981. On 17 March 1999, Ms Prak's application was refused on the ground that she was not in a genuine and continuing relationship with Mr Kong. Mr Kong lodged an application for a review of this decision with the Migration Review Tribunal which conducted a hearing on 11 September 2000. On 23 October 2000, the Tribunal remitted the application to the Respondent for reconsideration with directions that certain criteria relating to the spousal relationship between Ms Prak had been satisfied. However, the Tribunal found that Ms Prak's two children were not wholly or substantially dependent upon her and were therefore not entitled to the grant of visas. With regard to the spousal relationship between Ms Prak and Mr Kong, the Tribunal made the following findings of fact:

The primary visa applicant and the review applicant are legally married to each other.

They have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

The relationship between them is genuine and continuing.

They are not living separately and apart on a permanent basis.

8. The matter having been remitted to the Respondent for reconsideration, Ms Prak was interviewed at the Australian Embassy in Phnom Penh on 14 February 2001. On that day, a delegate of the Respondent decided to refuse the grant of a visa to Ms Prak on the ground that pursuant to s 501(6)(c)(ii) of the Migration Act 1958 ("the Act") she was not of good character because of past and present general conduct. On 20 March 2001, Mr Kong lodged an application with the Tribunal for a review of this decision.

RELEVANT LAW

9. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character;...

10. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a Subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

Either

(a) the applicant satisfied the Minister that the applicant passes the character test; or

(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

11. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

13. The issue for the Tribunal to determine in this case is, therefore, whether Ms Prak is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

EVIDENCE

Sareth Kong (the Applicant) (A1)

14. Mr Kong said he was born on 14 October 1957 in Takeo Province in Cambodia. He arrived in Australia on 27 June 1983 with his ex-wife, Rath Ray, and their then 3 children. They came from a refugee camp in Thailand where they had been since 1979 and from where he lodged an application for a refugee visa to migrate to Australia. Mr Kong became an Australian citizen on 11 December 1985. He subsequently separated from Rath Ray in 1987 and they were divorced on 23 January 1994.

15. Mr Kong said he was introduced to Ms Prak by Sokham Khuth with whom he shares a house in Rosemeadow. In 1991, Mr Khuth showed Mr Kong a photograph of Ms Prak and, around the middle of 1992, Mr Kong telephoned her to introduce himself. They then communicated by phone over the next 3 years or so, until Mr Kong travelled to Cambodia in 1995 for their wedding. They were married on 10 April 1995.

16. Mr Kong said when he and Ms Prak were married in 1995, he thought she had two natural children. Later on, she told him the full true story which was that one son was her natural born child and the other was an adopted child whom she had raised from an early age. Ms Prak told Mr Kong this after she had been interviewed at the Australian Embassy at Phnom Penh for the first time, when she gave the wrong information to the interviewing officer. It was for this reason that Mr Kong went to see Mr Bui for advice. Mr Kong said Ms Prak did not tell him that she had also provided false documents to support what she had said at the interview. He said he believed she was scared at the interview and did not draw a distinction between one child being her natural child and the other her adopted child. Through letters and over the phone, Mr Kong tried to establish the real facts from Ms Prak so that he could present these to Mr Bui.

17. Mr Kong was referred to his letter to the Principal Migration Officer at the Australian Embassy in Phnom Penh dated 1 January 1998 (T16). Mr Kong said he had written this letter with the assistance of Mr Bui. Mr Kong was then referred to a record of interview between an immigration officer and Ms Prak on 7 April 1997 (Supplementary T Document 27). Mr Kong said that at the time this interview was conducted, he had still assumed that both boys were her natural children. With regard to the answers given by Ms Prak in the course of this interview to questions about her relationship with Mr Kong, he said, contrary to her answers, he was not married to her in the Pol Pot time. Mr Kong suggested that she may have been confused at the interview and that perhaps there had been a problem with the interpretation. At the time Ms Prak suggested they were married in 1983, Mr Kong was with his family in the refugee camp in Thailand. He and Ms Prak are from different provinces in Cambodia and he did not know of her until shown a photograph in 1991.

18. Mr Kong was asked about DNA testing. He said he had undergone DNA testing in 1997. However, an inspection of the documentation (A2) indicates that the test was to establish whether or not there was a blood relationship between Mr Kong and Ms Prak and not to establish whether there was a relationship between Mr Kong and Ms Prak's two sons. When Mr Kong understood this, he said he was willing to undergo further DNA testing which would show that Ms Prak's two sons are not his children. Mr Kong was referred to a letter to him from the Australian Embassy in Phnom Penh dated 8 April 1997 (Supplementary T Documents 28). Mr Kong said he did not recall this letter and he may have been confused because at that time he had already undergone DNA testing. Mr Kong reiterated that he did not know Ms Prak in the Pol Pot time and did not have a child with her. He suggested that she must have been confused at the interview on 7 April 1997.

19. Mr Kong said he first met Mr Prak's two sons when he went to Cambodia to marry her. He only stayed for 3 days in her village because the situation was not safe. They then went to Phnom Penh where they were together for 3 months. Mr Kong said he had never had any knowledge of her 2 sons through anyone else.

20. Mr Kong was asked about Mr Sokhom Khuth with whom he shares a house in Rosemeadow. Mr Kong said he is not aware that Mr Khuth is the uncle of Ms Prak's adopted son. He is also not aware that the son tried to migrate to Australia in 1994 and was refused a visa. Mr Kong acknowledged that Mr Khuth went with him to Cambodia to attend Mr Kong's marriage to Ms Prak. Mr Khuth did not tell Mr Kong that Ms Prak's adopted son was his nephew. Mr Kong rejected the suggestion that he and Ms Prak had tried to enable Mr Khuth's nephew to migrate to Australia with Ms Prak as part of her family unit. Mr Kong was asked about the information given to the departmental officers who made a field visit to Ms Prak's village. Mr Kong said the information given to the officers had been wrong. He has never lived in Ms Prak's village and he does not have a child by her.

Sokhom Khuth (A3)

21. Mr Khuth said he is not related to Ms Prak's two sons. He said he has known Ms Prak for over 20 years because they lived in the same village in Cambodia. Mr Khuth arrived in Australia in 1987 and has known Mr Kong since 1993. Mr Khuth was asked about photographs attached to immigration papers relating to his mother, Lon Khuth, dating from 1985 (Supplementary T Documents 1). Mr Khuth identified a photograph of his mother and of his younger sister, Sina Khuth. Mr Khuth also has another sister, Bopha Khuth. Mr Khuth was asked about the inclusion of both Sakhan Chap and Bona Chap in details provided of relatives. Mr Khuth said that Bona Chap and Sakham Chap are natural brothers and were his foster brothers.

22. Mr Khuth said he has been back to Cambodia on two occasions since arriving in Australia in 1987: in 1991 and 1995. Although Sakham Chap lives in the same village, Mr Khuth did not see him on his two visits because Sakham Chap was not there at that time and Mr Khuth was only in the village for a day or so. Mr Khuth said he did, however, see Sakham Chap's wife Chenda Pho, and other relatives. Mr Khuth is not aware of the names of Sakham Chap's children but said he had heard the name Sareth Chap mentioned in the village. He is not aware of who Sareth Chap's parents were. Mr Khuth said he knew Ms Prak had one natural child who was not Mr Kong's child. He was also aware that she has a foster child but does not know that child. Mr Khuth denied that he had suggested to Mr Kong that Ms Prak's foster child should be included in her application for a visa.

Lora Khuth (A4)

23. Ms Khuth said she was born on 4 June 1970 and is aged 31. Sokhom Khuth is her husband whom she married in Cambodia in 1992 and migrated to Australia as his wife. Ms Khuth said although she lived in a different province to that of Ms Prak, she knew Ms Prak through her parents because her father's village was next to Ms Prak's. Ms Khuth had known Ms Prak for 4 or 5 years before coming to Australia, from about 1987. Ms Khuth said she had been to Ms Prak's house which was a small hut where she lived with her parents and children. Ms Khuth remembered that there had been two children, one natural child and one foster child. Ms Prak had never spoken to her about Mr Kong.

24. Ms Khuth said she had known Mr Kong since about 1993/1994 at a shared house in Rosemeadow. Ms Khuth said her husband has two sisters in Australia, Bopha and Sina Khuth. He has no other siblings in Cambodia and no adopted brothers or sisters.

Lon Khuth (A6)

25. Mrs Khuth is the mother of Sokhom Khuth and Sina Khuth. Mrs Khuth said she cannot write and children complete forms for her. She said she does not have any sons in Cambodia - her son Sokhom Khuth lives in Australia.

Sina Khuth (A7)

26. Ms Khuth said she was born on 1 March 1970 and came to Australia in 1985. She is a process worker. Ms Khuth has been back to Cambodia once, in 1994, when she was married to Ken Vuthy. Ms Khuth's brother, Sokhom Khuth, told her that he introduced Sareth Kong to Sarin Prak.

27. While she was in Cambodia in 1994, Ms Khuth met Ms Prak, her natural son Sarith Chap and her adopted son Sareth Chap. Ms Khuth said Ms Prak's natural son was Ms Khuth's ring bearer at her wedding. Ms Khuth confirmed that her mother is Lon Khuth who is living with her at the moment, and her siblings are Bopha Khuth and Sokhom Khuth. Ms Khuth said her mother has adopted sons in Cambodia, one of whom is Sakhan Chap who is married to Chenda Pho. Ms Khuth said she had assisted her mother completing the application for Sakham Chap to migrate to Australia in June 1994 (Supplementary T Documents T4) and that she had signed this form as the person giving assistance. Ms Khuth was asked about the inclusion in this form of Sareth Chap. Ms Khuth said Sareth Chap was Ms Prak's adopted son, the older of her two children, but Ms Khuth is not aware who his natural parents are. She said Sareth Chap lived next door to Ms Prak which was where Sakhan Chap's family lived. Ms Khuth said she met Sakhan Chap when she went to Cambodia in 1994 for her wedding.

Sarin Prak (the Visa Applicant)

28. Ms Prak apologised for her past mistakes in providing information to the Department (A5). She acknowledged that she might have given incorrect information about her adopted son, Sareth Chap in her 1995 visa application in so far as she did not mention that he is an adopted child. She adopted him in 1984 when he was about 4 years old, his parents having died in 1979, so that he was an orphan. Ms Prak raised him as her child since 1984. She denied that his parents were Sahan Chap and Chenda Pho. She said they live in the same village but are not related.

29. Ms Prak said she married Mr Kong in 1995. She had previously been married to Run Chap, who died in 1982, and was the father of her natural son, Sarith Chap. Ms Prak acknowledged that she had told the Department that both her children were the sons of Run Chap. However, she could not remember the particular documents she had lodged. Ms Prak said Mr Kong told her in 1995 that he arrived in Australia in 1983. She said that she did not know him in 1983 before he came to Australia. She first knew about him in about 1992 through photographs.

30. Ms Prak was asked about her 1998 application to migrate to Australia. She said that she provided information to the Department about her son in this application and acknowledged that she had asked the Chief of her village to certify that Sareth Chap had lived with her since he was born, which was not true (T14, p147). She was unable to account for the mistake in the certificate. Ms Prak was also asked about a student identity card, a copy of which she provided to the Department (T14, p146). This states that Sareth Chap's father is Sokhon Chap and her mother is Chinda Khut. Ms Prak said she had used the names of her neighbours on her son's identity card, but they were not his true parents.

31. With regard to the letter of consent that Ms Prak provided purporting to be from Sareth Chap's natural parents (T14, p148), stating that his father is Sokorn Chap and his mother is Chinda Khuth, Ms Prak said she had asked her neighbours to sign this document because her adopted son has no parents. Ms Prak said that the signatures on the consent letter are of those persons. However, Ms Prak emphasised that Sokorn Chap and Chinda Khuth are not her adopted son's real parents. Ms Prak said she knows Sokhon Khuth who is a friend of her husband's. Mr Khuth is not the uncle of her adopted son.

SUBMISSIONS

The Respondent

32. Mr Leerdam, for the Respondent, drew attention to 3 migration applications amongst the T documents: the 1995 and 1998 applications by Ms Prak, and a 1994 application by Sakhan Chap, the brother of Sokhon Chap. Mr Leerdam said that an officer in the Australian Embassy in Phnom Penh had noticed an identical photograph in Ms Prak's1995 application to a photograph in Sakhan Chap's 1994 application. This similarity sparked off an investigation by officers at the Embassy, including a visit by two officers to Pors Village, on 15 August 1996. This investigation was also reflected in the nature of the questions put to Ms Prak in the interview at the Embassy on 7 April 1997 (Supplementary T Documents, p121ff).

33. Mr Leerdam noted Ms Prak's "Sorry Letter" dated 21 May 2001 (A4) in which she apologises for past mistakes. He said this sorry letter appears to have been in relation to Ms Prak's 1995 migration application. However, Mr Leerdam said Ms Prak still claims that there is no connection between the 1994 migration application by Sakhan Chap and her 1995 migration application, notwithstanding that the same person is included in both applications. Mr Leerdam noted that Mr Kong shares a house with Sokhom who is Sakhan Chap's brother (Supplementary T Documents p37). Mr Leerdam said there is a clear connection between the 1994 and 1995 applications with Sarith (which presumably should have been Sareth) Chap being included in both applications. Mr Leerdam submitted that Sokhom Khuth, who appears to be the uncle of Mr Prak's adopted son, Sareth Chap, was evasive in giving evidence and not willing to explain the connection between the 1994 and 1995 applications.

34. Mr Leerdam said that Sina Khuth proved to be a reliable witness. She only knew Ms Prak's younger, natural son, who was the ring bearer at Ms Khuth's wedding. Ms Khuth's evidence was that the older, adopted son, lived next door to Ms Prak which was where Sakhan Chap's family lived.

35. Mr Leerdam suggested there are two possibilities. First, Ms Prak's older boy is her adopted son and she came to an arrangement that he should be "loaned" to Sakhan Chap for the purposes of his 1994 migration application, and, when this was refused, he returned to live with Ms Prak. The second possibility is that Ms Prak's older boy is the natural child of Sakhan Chap and was loaned to Ms Prak to see if he could obtain entry to Australia. Mr Leerdam said the Respondent prefers the first possibility, that her older boy was adopted by her from the age of about 4. Mr Leerdam said Ms Lora Khuth had also proved to be a reliable witness and had described the living arrangements in the hut where Ms Prak lives with her parents and 2 sons.

36. Mr Leerdam submitted that despite Ms Prak's "Sorry Letter", she admitted to further acts of fraud in relation to her 1998 migration application. She said the parents of her adopted son have died, when it appears they may be neighbours, and she also obtained falsified documents and included those documents with the application lodged. Ms Prak admitted that the student identity card for Sareth Chap was false, that her statement that she had cared for her adopted son since birth was also false, and that the letter of consent purporting to be from her adopted son's natural parents was also false. At other times, Ms Prak has said her adopted son's parents are both dead. The signatures on the letters of consent may also have been forged.

37. With regard to whether Ms Prak passes the character test pursuant to s 501 (1) of the Act, Mr Leerdam submitted that if it were only Ms Prak's 1995 migration application which was under consideration, then it might be open to the Tribunal to make a finding of good character. However, Ms Prak once again included false documents with her 1998 migration application and so, in line with Paragraph 1 of Direction No 21, the Respondent submits that Ms Prak does not pass the character test because of her past and present general conduct (s 501(6)(c)(ii)).

38. With regard to the exercise of the Minister's discretion in s 501(1) and the application of Part 2 of Direction No. 21, Mr Leerdam submitted that there are important reasons for not exercising the discretion in Ms Prak's favour. He noted clause 309.229 of Schedule 2 of the Migration Regulations in effect at the time of Ms Prak's 1998 migration application, required the Minister to be satisfied:

that the grant of a Subclass 309 visa to the child as a member of the family unit of the Applicant would not prejudice the rights, and interests of any other person who has custody or guardianship of, or access to, the child.

39. Mr Leerdam drew attention to a number of unresolved issues, with respect to the identity of Ms Prak's adopted son, Sareth Chap who was born on 1 February 1980. Ms Prak admitted in evidence that she had sought to misrepresent the permission she had to take her adopted son out of the country.

40. Mr Leerdam submitted that this was a case where the Minister's discretion to grant a visa might be exercised beneficially in relation to a future migration application if a number of issues are addressed. First, there must be no further falsehoods or false documents submitted. Second, there must be a full and proper explanation supported by evidence as to the lineage of Ms Prak's two children, in particular as to the adoption of her older child, which should be supported by affidavits as to the relevant family history. Mr Leerdam noted that the information given by villagers to the departmental officers who made a field visit to Ms Prak's village contradicted her evidence. Third, both Ms Prak and Mr Kong should undergo further DNA testing to confirm whether they are related to either of Ms Prak's two sons. Finally, up to date medical information and reports should be provided with respect to Mr Kong's medical condition.

The Applicant

41. Mr Bui, for Mr Kong, noted that the Migration Review Tribunal had found Ms Prak and Mr Kong to have a genuine marital relationship. That Tribunal had also recognised that only Ms Prak is eligible for a visa because her two sons are no longer dependents.

42. Mr Bui said it should be noted that Ms Prak is a Cambodian villager, who has a very low level of education and poor living standards. Cambodia is a very poor, under-developed country where villagers are under the control of local authorities. Ms Prak is a good citizen, who has no criminal record, and who should be united with her husband who suffers from a serious medical condition and needs her support.

APPLICATION OF THE LAW AND FINDINGS

43. The Respondent contends that Ms Prak does not pass the character test by virtue of s 501(6)(c) of the Act having regard to "the person's past and present general conduct". The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

44. Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Prak does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of the discretion.

45. Firstly, the Tribunal is not satisfied that Ms Prak is of good character having regard to her past and present general conduct. Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b), which directs the decision-maker to consider:

whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.

46. Ms Prak has acknowledged in her "Sorry Letter" dated 21 May 2001 (A5) that she had lied in the past in providing information to the Department. This letter appears to relate to the false information given in her 1995 migration application. However, Ms Prak also admitted in giving evidence that she had provided further false documents in support of her 1998 application as to the identity and parenthood of her adopted son, Sareth Chap. The Tribunal acknowledges that Ms Prak may not have understood the significance of these falsehoods, particularly bearing in mind her circumstances in Cambodia as a poorly educated villager. However, the giving of false information and the supply of false documents is misconduct which should be regarded as serious. The Tribunal finds, therefore, pursuant to s 501(6)(c), that she does not pass the character test having regard to her past and present general conduct.

47. Having so determined, the Tribunal must consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding her not passing the character test, not to refuse the grant of a visa to Ms Prak. In doing so, the Tribunal will have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.

48. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

49. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes under the Migration Act which, in turn, include providing false or misleading statements. The Tribunal notes the emphasis given in a number of decisions to the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:

The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.

50. As the Tribunal has noted above, however, the countervailing factor with regard to the misconduct in Ms Prak's case is her low level of education and what the Tribunal considers is a lack of understanding, as a villager in an under-developed country, of the significance of the truth in relation to such migration applications.

51. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and general deterrence - the likelihood that visa refusal or visa cancellation would prevent or inhibit the commission of like offences by other persons. In the Tribunal's view, Ms Prak has not understood the significance of truth in the migration process and, until she does so, there is a risk that she will continue to provide false information if she believes this is necessary to advance her case. The Department needs to be assured that there will be no repetition of such falsehoods in the future. Ms Prak's conduct to date indicates that there is a risk of recidivism. With regard to general deterrence, the Tribunal recognises that people should be deterred from making false or misleading statements for the purpose of obtaining visas.

52. The second primary consideration is the Expectations of the Australian Community. In the present case, the Australian Community may expect that a person who has given false information and provided false documents in relation to a migration application should not be granted a visa. The third primary expectation is the best interests of the child or children in a parental or other close relationship with the Visa Applicant. Since the Migration Review Tribunal has found that neither of Ms Prak's sons are dependents, this consideration is not relevant.

53. Paragraph 2.17 of the Direction notes that the decision-maker may take into account other considerations where relevant. These may include: genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established, and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the family composition of the non-citizen's family both in Australia and overseas; and any hardship which would be caused to the parties.

54. The Migration Review Tribunal found that the marriage relationship between Mr Kong and Ms Prak is genuine one. Mr Kong is an Australian citizen, who was clearly aware at the time he and Ms Prak were married that she would need to apply for migration to Australia. His evidence is that at the time they were married, he was not aware that Ms Prak's older son was in fact adopted. The Tribunal accepts that hardship will be caused to both Mr Kong and Ms Prak by the refusal of a visa to Ms Prak, particularly because Mr Kong may need additional support as a result of his illness. The Tribunal notes that they have been apart since 1995.

55. A balancing of the primary and other considerations leads the Tribunal to conclude that the discretion in s 501(1) should not be exercised in Ms Prak's favour, and, therefore, the decision should be affirmed. In the Tribunal's opinion, the protection of the Australian community is the pre-eminent consideration to which most weight should be given at the current time.

56. The Tribunal notes Mr Leerdam's submission that this may be a case where, nevertheless, it is appropriate to consider exercise of the discretion beneficially in the future. The Tribunal agrees that there are a number of unresolved issues with regard to the parenthood and identity of Ms Prak's adopted son, Sareth Chap, and, in the Tribunal's view, these issues should be addressed. Although Mr Kong has denied both that he is the father of Ms Prak's adopted son or that he was previously married to Ms Prak in the Pol Pot years, for the sake of certainty, it would seem sensible for Mr Kong and Ms Prak to have further DNA tests to establish that Sareth Chap is not, in fact, Mr Kong's natural son. The Tribunal notes, however, that the record of interview between the Departmental Officer and Ms Prak on 7 April 1997 (Supplementary T Documents p121) suggests that a number of the questions put to Ms Chap lacked the necessary specificity to enable any great weight to be given to some of her answers, and those answers also indicate significant confusion on her part.

57. In the Tribunal's view, an explanation is also required as to why Sareth Chap is listed as a dependent in both Sakhan Chap's 1994 migration application, albeit mistakenly as Sarith Chap, as well as in Ms Prak's 1995 application, with apparently identical photographs being used on both occasions.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed: .....................................................................................

Associate

Dates of Hearing 19 & 20 December 2001

Date of Decision 22 February 2002

Representative for the Applicant Mr Bui, Bui's Migration Services

Solicitor for the Respondent Mr L Leerdam, Sparke Helmore Solicitors